December 23, 2022

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))

https://www.beynensonlaw.com/case-law/msb-physical-therapy-p-c-v-nationwide-ins-2022-ny-slip-op51378u/

Court: Appellate Term, Second Department
Decided: December 23, 2022
Citation: 2022 NY Slip Op 51378(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later history: Vacated by MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50830(U))
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

MSB Physical Therapy, P.C. v Nationwide Ins., 2022 NY Slip Op 51378(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to establish timely denial after the provider's second EUO nonappearance or raise a triable issue on that defense. The provider sought assigned no-fault benefits, and the insurer moved for summary judgment based on missed EUOs. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the insurer's failure to demonstrate that its defense was not precluded required denial of its motion. Its papers also failed to defeat the provider's cross motion. The Appellate Term, Second Department, affirmed denial of the insurer's motion and the grant of summary judgment to the provider, expressly declining to review the provider's unchallenged prima facie showing.

Reported in New York Official Reports at MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

MSB Physical Therapy, P.C., as Assignee of Bright, Sayquan U, Respondent,
against
Nationwide Ins., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Defendant’s motion failed to establish that it had timely denied plaintiff’s claims after plaintiff’s second failure to appear for an EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. [*2]v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

As to plaintiff’s cross motion, defendant does not challenge plaintiff’s prima facie case and so we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Moreover, defendant’s papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense so as to warrant denial of plaintiff’s cross motion.

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 23, 2022

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer did not show it was not precluded from its EUO no-show defense because it failed to establish that it timely denied the claims after the provider's second nonappearance.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followedDeclined to follow, questioned, overruled or reversed

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 22383)An insurer's 30-day period to pay or deny resumes at the second EUO nonappearance when no other verification request is outstanding.
FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U))An insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second.
Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340)An untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U))The 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Cited by

A label shows how the later decision treated this one.

MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50830(U)) VacatedThe insurer established timely EUO requests, the provider's nonappearance at each scheduled EUO, and timely, proper denials.

Similar decisions

MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.
NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50764(U))The insurer's summary judgment motion based on EUO nonappearance was denied because it failed to establish timely denial.
MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co. (2022 NY Slip Op 51384(U))An insurer need not state objective reasons for provider EUOs to establish prima facie entitlement to summary judgment for nonappearance.
Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))The insurer failed to establish timely EUO nonappearance denials for the provider's first three causes of action.